Senate Democrats are urging the Department of Justice to conduct an investigation into the expulsions of two Tennessee state representatives to determine whether their removal violated the Constitution or federal civil rights law.
In a letter delivered on Wednesday, Senate Majority Leader Charles E. Schumer (D-N.Y.) and Sens. Raphael G. Warnock (D-Ga.), Alex Padilla (D-Calif.), Chris Murphy (D-Conn.) and Brian Schatz (D-Hawaii) call on Attorney General Merrick Garland to “use all available legal authorities” to conclude whether federal statutes were violated and “take all steps necessary to uphold the democratic integrity of our nation’s legislative bodies.”
The letter, obtained by The Washington Post, is the first formal effort by U.S. Senate lawmakers in response to the removals. The Republican-dominated Tennessee House expelled Reps. Justin Jones and Justin Pearson, both Democrats, on Thursday after they led protesters in chants for gun control from the floor of the chamber.
The senators argue that the removals may have violated Jones’s and Pearson’s First Amendment rights to free speech and assembly, the rights of citizens of Memphis and Nashville to be represented by the legislators of their choice and rights the pair have under the 14th Amendment or civil rights statutes prohibiting discrimination on the basis of race.
Jones and Pearson are both Black men in their late 20s who were expelled by the chamber’s GOP supermajority for participating in “disorderly behavior.” The two protested alongside fellow Democratic Rep. Gloria Johnson, who is White. She was not expelled.
State Rep. Lowell Russell (R) has explained that he voted to expel Jones and Pearson but not Johnson because she “did not participate to the extent that Jones and Pearson did.”
Jones was later reinstated by the Nashville Metropolitan Council, and Pearson is expected to be reinstated by Memphis authorities.
The office of Tennessee House Speaker Cameron Sexton did not immediately respond to a request for comment on the senators’ letter. A Justice Department spokesperson confirmed the agency had received the letter and is reviewing it.
The letter cites the Supreme Court’s unanimous 1966 ruling in Bond v. Floyd as a potential precedent to draw from in arguing that the expulsions in Tennessee were unlawful. In that case, the high court found that the Georgia House of Representatives’ refusal to seat a Black lawmaker, Julian Bond, over his stance on the Vietnam War was unconstitutional.
“There are some who would try to distinguish Georgia’s exclusion of Bond for his speeches about the war outside the legislative chamber from Tennessee’s repressive and vindictive expulsion of two duly elected members for their robust expressions of views in the well of the chamber in alleged violation of its rules of decorum,” said Laurence Tribe, a professor emeritus of law at Harvard University. “But to me, that is a distinction without a difference.”
Beyond the Bond case, there are few relevant precedents on which to draw, potentially complicating any Justice Department effort. It is also unclear whether the department would have the appetite to delve into a politically fraught case at a time when local authorities are already acting to restore the lawmakers to their jobs.
“I can imagine a scenario in which the two legislators bring cases citing constitutional claims, but I think that those claims turn upon these really difficult questions of fact about the reasons for the expulsion,” said Aziz Huq, a constitutional law professor at the University of Chicago.
“I think those cases would be challenging to win and I don’t see any immediate payoff from those cases for these legislators given one’s been reinstated and the other one is likely to be reinstated,” Huq said.
In their letter, Warnock and Schumer praised the state representatives for “courageously participating in nonviolent demonstrations” that “challenged procedural rules.”
“We do not believe that breaking decorum is alone sufficient cause for employing the most draconian of consequences to duly-elected lawmakers,” the senators wrote. “This is un-democratic, un-American, and unacceptable, and the U.S. Department of Justice should investigate whether it was also unlawful or unconstitutional.”